Charles B. De Than Group v. Richmond

• Decision Date: 19 April 1990
• Citation: 160 A.D.2d 530,554 N.Y.S.2d 183
• Parties: CHARLES B. DE THAN GROUP, Plaintiff-Appellant, v. Frederick W. RICHMOND, a/k/a Fred Richmond, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 183

554 N.Y.S.2d 183

160 A.D.2d 530

CHARLES B. DE THAN GROUP, Plaintiff-Appellant, v. Frederick W. RICHMOND, a/k/a Fred Richmond, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

April 19, 1990.

A.C. Kellman, New York City, for plaintiff-appellant.

S. Geller, for defendant-respondent.

Before CARRO, J.P., and MILONAS, ASCH, ELLERIN and RUBIN, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, New York County (William J. Davis, J.), entered on June 22, 1989, which denied plaintiff's motion for summary judgment pursuant to CPLR 3212, is unanimously affirmed, with costs and disbursements.

Plaintiff responded by letter to defendant's advertisement seeking desirable investment opportunities. It thereafter arranged for the sale to defendant of a large business concern, and the closing occurred on March 1, 1988. Prior to such closing, several written and oral communications were exchanged between the parties. Pursuant to an alleged oral agreement, plaintiff was to share a single commission with defendant's broker. While there were several transactions comprising the sale, it was agreed in writing that the main transactions "shall constitute one transaction." Nine months subsequent to the closing, the business, contrary to its supposed past performance, suffered a significant loss.

Plaintiff commenced an action for commissions due. In the amended complaint, it alleged eight separate causes of action based upon eight purported transactions. Defendant's answer contains a general denial and several affirmative defenses. He then responded to two sets of interrogatories, following which plaintiff moved for summary judgment. The Supreme Court denied the motion, finding many unresolved questions of fact. In that regard, plaintiff has failed to demonstrate a "prima facie showing of entitlement to judgment as a matter of law" (Tri-State Equipment Leasing Company v. Felix Industries, Inc., 125 A.D.2d 565, 567, 509 N.Y.S.2d 634). Significantly, plaintiff did not address several of defendant's affirmative defenses until it served reply papers on the motion for summary judgment. In any event, material questions, including those concerning the "value" of the contract, the alleged multiple transactions and the oral agreements, cannot be resolved on the record, precluding the granting of summary judgment ( Rotuba Extruders v. Ceppos, 46 N.Y.2d 223, 413 N.Y.S.2d 141, 385 N.E.2d 1068).